Mayfield v. Morris et al

Filing 32

MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Stephan M. Vidmar to DENY 21 Petitioner Earl Mayfield's Fourth Amended Petition Pursuant to 28 U.S.C. § 2254. Objections to PF&RD are due by Ma rch 13, 2020. Add 3 days to the deadline if service is by mailing to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c). (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EARL R. MAYFIELD,
Petitioner,
v.

No. 17-cv-0891 MV/SMV

GREG MORRIS, TOM RUIZ,
and STATE OF NEW MEXICO,
Respondents.
MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before me on Petitioner Earl Mayfield’s Fourth Amended Petition
Pursuant to 28 U.S.C. § 2254, filed by his attorney on June 17, 2019.1 [Doc. 21]. Respondents
filed an answer on September 4, 2019. [Doc. 26]. Petitioner replied on November 8, 2019.2
[Doc. 31]. The Honorable Martha Vázquez, United States District Judge, referred this matter to
me for analysis and a recommended disposition. [Doc. 7]. Having considered the parties’
submissions, the record, and the relevant law, and being otherwise fully advised in the premises, I
find that Petitioner has failed to show that the state courts’ decisions were contrary to, or involved
an unreasonable application of, clearly established Federal law or were based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding. See 28
U.S.C. § 2254. Further, I find that under any standard of review, Petitioner’s claims are without

This “Supplemental Brief” is treated as Petitioner’s Fourth Amended Petition, entirely supplanting the earlier, pro se
petitions and amendments. See [Doc. 22] at 1 n.1 (citing [Docs. 1, 2, 8, 16]).
2
Petitioner’s Reply was untimely filed. He neither requested leave from the Court to file a late reply, nor did he
comply with D.N.M.LR-Civ. 7.4(a). Respondents, however, have not indicated any objection to the Court’s
considering the untimely Reply, and thus, I consider it.
1

merit. Therefore, I recommend that the presiding judge deny the Petition and dismiss the action
with prejudice. Next, I recommend that the presiding judge deny Petitioner’s request that this
Court “notify” the state district court that he or his attorney should have access to any in camera
interview, [Doc. 31] at 1–2. Finally, I recommend that the presiding judge deny Petitioner’s
request for an evidentiary hearing. I do so for two reasons. First, the claims were adjudicated on
their merits by the state courts. See Cullen v. Pinholster, 563 U.S. 170, 182–83 (2011). Second,
no evidentiary hearing is needed because even if everything Petitioner alleges were borne out by
evidence, his claims would still fail.
Background
Petitioner was convicted on November 16, 2016, of trafficking a controlled substance.3
[Doc. 27] at 205. Petitioner alleges that a “confidential informant, working in concert with law
enforcement officers, at their direction and under their control, supplied [him] with a quantity of
crack cocaine, for the sole purpose of selling it to a law enforcement officer working undercover.”
[Doc. 21] at 3–4. Apparently, he did then sell the crack cocaine to the undercover agent, and that
sale formed the basis of his conviction. As he sees it, therefore, the crime for which he was
convicted was “wholly created by law enforcement officers and agents under their direction and
control, supplying the drugs, acting as seller and buyer, ensnaring [him] between two law
enforcement officers or agents, solely for the improper purpose of putting him in prison.” Id.
at 1-2. At trial the judge instructed the jury on the defense of entrapment. [Doc. 27] at 199.
Nevertheless, the jury found Petitioner guilty. Id. at 205. He was sentenced to 19 years of

3

Petitioner was also convicted of tampering with evidence and resisting, evading, or obstructing an officer. [Doc. 27]
at 205. He makes no challenge to these convictions. See [Docs. 21, 31].

2

incarceration. [Doc. 26-1] at 8; see [Doc. 21] at 1. The parties agree that Petitioner exhausted his
state-court remedies. [Doc. 21] at 13–18; [Doc. 26] at 5.
Standard For § 2254 Habeas Petitions
The provisions of § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996, 110 Stat. 1214 (“AEDPA”), govern this case.4 A petition for habeas corpus under
§ 2254 attacks the constitutionality of a state prisoner’s conviction and continued detention. The
Court cannot grant habeas relief pursuant to § 2254(d) unless the decision in a petitioner’s
state-court proceeding:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
§ 2254(d) (emphasis added). “Even if a state court resolves a claim in a summary fashion with
little or no reasoning, [federal courts] owe deference to the state court's result.” Paine v. Massie,
339 F.3d 1194, 1198 (10th Cir. 2003). The standard is “highly deferential” to state courts, and the
Supreme Court has added that it is “difficult to meet,” as it demands that state-court decisions be
given the benefit of the doubt. Pinholster, 563 U.S. at 181 (citing Harrington v. Richter, 562 U.S.
86, 102 (2011); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)); see also Black v.
Workman, 682 F.3d 880, 891 (10th Cir. 2012) (“Under [AEDPA] a federal court in a § 2254

4

Because this Petition was filed after the effective date of the AEDPA, its standards apply to guide this Court’s
determinations. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); DeLozier v. Sirmons, 531 F.3d 1306,
1319 (10th Cir. 2008).

3

proceeding must be exquisitely deferential to the state court’s resolution of the [petitioner’s]
claims.”).
The term “clearly established Federal law . . . . refers to the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000). A state decision is “contrary to” Supreme Court
precedent if it “applies a rule that contradicts the governing law set forth in [those] cases.” Id.
at 405. The Supreme Court has interpreted the term “contrary to” as meaning, inter alia,
“diametrically different” and “opposite in character and nature.” Id. Therefore, habeas relief under
§ 2254 may be granted only where the state court “applies a rule that contradicts the governing
law set forth in Supreme Court cases,” or if it “confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result
different from [that] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003). Significantly, it is
unnecessary for the state court to cite applicable Supreme Court cases or even to be aware of such
cases, “so long as neither the reasoning nor the result of the state-court decision contradicts [that
precedent].” Early v. Packer, 537 U.S. 3, 8 (2002).
A state decision makes an “unreasonable application” of Supreme Court precedent if it
“identifies the correct governing legal principle from [the Court’s] decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. However,
“[i]t is not enough that a federal habeas court, in its independent review of the legal question, is
left with a firm conviction that the state court [applied] clearly established federal law erroneously
or incorrectly.” Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003) (internal quotation marks and
citations omitted). “Rather, that application must be objectively unreasonable.” Id. at 76.
4

Pursuant to AEDPA, state-court findings of fact are “presumed to be correct.”
§ 2254(e)(1). Therefore, an application for a writ of habeas corpus that challenges a finding of
fact must be dismissed unless the petitioner can show by clear and convincing evidence that the
determination was factually erroneous. Id.; Wiggins v. Smith, 539 U.S. 510, 528 (2003).
Where the state courts adjudicated a claim on the merits, federal courts are limited to
reviewing the record as it stood before the state courts. § 2254(d). That is, evidentiary hearings
are not permitted in federal court on claims that the state courts decided on their merits. Pinholster,
563 U.S. at 182–83 (citing § 2254(d)(1)); Littlejohn v. Trammell, 704 F.3d 817, 857 (10th Cir.
2013). “‘Adjudicated on the merits’ has a well settled meaning: a decision finally resolving the
parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather
than on a procedural, or other ground.” Wilson v. Workman, 577 F.3d 1284, 1308 (10th Cir. 2009)
(internal quotation marks omitted). Thus, summary decisions—even those completely devoid of
any reasoning at all—can constitute decisions “on the merits” for purposes of AEDPA. Richter,
562 U.S. at 99.
“[C]onclusory allegations without supporting factual averments are insufficient to state a
claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
Finally, a court “cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett v. Selby, Connor, Maddox & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (citing Hall, 935 F.2d at 1110).
Analysis
Petitioner is not entitled to habeas corpus relief on any of his claims. His entrapment claim
is not cognizable under § 2254.

His factual allegations—even if true—do not amount to
5

outrageous government conduct. Finally, his right-to-counsel claim is vague and conclusory.
Thus, Petitioner fails to show that the state courts’ decisions were contrary to, or involved an
unreasonable application of, clearly established federal law or were based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding. See
§ 2254. In fact, under any standard of review, Petitioner’s claims are without merit. His Petition
should be denied.
I. Entrapment/ Outrageous Government Conduct
Petitioner argues that his prosecution and conviction violate the federal constitutional
guarantee of due process as protected in the Fourteenth Amendment, “under the outrageous
government conduct doctrine, or objective entrapment.” [Doc. 21] at 4. He urges that his crime
was wholly created by law enforcement for the sole and illegitimate purpose of incarcerating him.
Id. at 2, 3–9. Petitioner’s position is that the state trial court’s failure to “quash the prosecution”
pursuant to New Mexico v. Vallejos, 1997-NMSC-040 “was a violation of due process.” [Doc. 21]
at 8. This claim is without merit.
A. Entrapment
Petitioner’s entrapment claim should be denied for numerous reasons. First, it is a state-law
claim and, as such, cannot trigger federal habeas relief. Second, the fact that Petitioner refers to
his state-law claim as “due process” does not change the result. Third, Petitioner’s citations to
cases in which entrapment was asserted as a defense to federal criminal charges (“federal
entrapment”) are not persuasive because even in the federal criminal system, entrapment does not
trigger habeas relief. Fourth, even if federal entrapment could trigger habeas relief, Petitioner’s
allegations fail to show federal entrapment because Petitioner was already predisposed to
6

trafficking cocaine when he sold the crack rock to the undercover agent. The Petition should be
denied.
Petitioner’s claim rests on the New Mexico defense of entrapment. It is a state-law claim.
Its nature as a state-law claim is evident in multiple ways. For example, Petitioner relies on a statecourt case, i.e., Vallejos, as the lynchpin for his claim. [Doc. 21] at 8 (citing 1997-NMSC-040).
Petitioner makes much about the federal cases cited in Vallejos, [Doc. 31] at 2, which he copied
and pasted into his brief, compare [Doc. 21] at 6–7, with Vallejos, 1997-NMSC-040, ¶ 30.5 But
the Vallejos court explicitly relied on the state constitution—not the federal constitution—in
making its decision. Id. ¶ 2 (“[W]e hold that entrapment . . . involves matters of due process under
. . . the New Mexico Constitution.”), id. n.2 (“[T]his decision is based entirely on state
constitutional grounds.”).

Furthermore, Petitioner emphasizes that law enforcement had an

“improper purpose,” which was to imprison him. [Doc. 21] at 2, 4–6. The motivation of law
enforcement is a relevant factor for the state-law defense of entrapment, but it is not relevant under
federal law. Compare Vallejos, 1997-NMSC-040, ¶ 19 (“Police also violate due process [under
the New Mexico state constitution] when they ensnare a defendant in an operation guided by an
illegitimate purpose.”), with, e.g., United States v. Hampton, 425 U.S. 484, 488 (1976) (“[T]he
entrapment defense [in the federal system] focuses on the intent or predisposition of the defendant
to commit the crime, rather than upon the conduct of the Government’s agents.” (internal brackets,
quotation marks, and citation omitted)). Accordingly, Petitioner’s repeated arguments about the

5

Compare [Doc. 21] at 5, with Vallejos, 1997-NMSC-040, ¶¶ 19–20; compare [Doc. 21] at 7–8, with Vallejos,
1997-NMSC-040, ¶ 32.

7

purpose and motivation of law enforcement show that his argument rests on state law rather than
federal law.
For these reasons, I find that Petitioner’s entrapment claim arises from state law and, as
such, does not show a denial of a federal constitutional right. See Vega v. Suthers, 195 F.3d 573,
583 (10th Cir. 1999) (holding that the defense of entrapment raises questions of state law only and
cannot trigger habeas relief). “[F]ederal habeas corpus relief does not lie for errors of state law.”
Estelle v. McGuire, 502 U.S. 62, 67 (1991). “[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.” Id. at 67–68; see § 2254. Petitioner’s entrapment arguments do not entitle
him to federal habeas relief. His petition should be denied.
Petitioner urges that his entrapment claim is cognizable in the federal-habeas context
because it violates his right to due process as guaranteed by the federal constitution. [Doc. 21]
at 4. I disagree. Petitioner cannot turn his state-law claim regarding the defense of entrapment
into a cognizable federal-habeas claim by labeling it “due process.”
A habeas applicant cannot transform a state law claim into a
federal one merely by attaching a due process label. See Gryger v.
Burke, 334 U.S. 728, 731 (1948). Otherwise, “every erroneous
decision by a state court on state law would come [to federal court]
as a federal constitutional question.” Id.; see Onyx Props. LLC v.
Bd. of Cty. Comm’rs, 838 F.3d 1039, 1044 (10th Cir. 2016); Johnson
v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997) (“Errors of state law
cannot be repackaged as federal errors simply by citing the Due
Process Clause.”). Rather, the habeas applicant should “include
reference to a specific federal constitutional guarantee, as well as a
statement of the facts that entitle [him] to relief.” Gray v.
Netherland, 518 U.S. 152, 162–63 (1996); Perruquet v. Briley, 390
F.3d 505, 512 (7th Cir. 2004) (explaining the applicant must “draw[]
enough of a connection” between the right to due process and the
8

sentencing court’s alleged errors “to render his claim cognizable on
habeas review”).
Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017) (brackets in original).
To successfully argue that a state-law error violated the federal constitutional guarantee of
due process, a habeas petitioner would have to show that the error was “fundamentally unfair.” Id.
As discussed more fully in the section addressing outrageous government conduct, infra, nothing
in Petitioner’s allegations, even if true, would be so fundamentally unfair as to implicate federal
due process. See id. (“A prisoner may seek relief, however, if a state law decision is so
fundamentally unfair that it implicates federal due process.”); Estelle, 502 U.S. at 67–68, 75
(asking whether the state-law error “so infused the trial with unfairness as to deny due process of
law”). This is particularly true in Petitioner’s situation because the trial-court judge instructed the
jury on state-law entrapment,6 [Doc. 27] at 199 (jury instruction number 13), even though
Petitioner had withdrawn the entrapment defense prior to trial, [Doc. 27] at 141 (Defendant’s
Notice of Withdrawal of 5-508(b) Notice of Entrapment Defense). Thus, even assuming the

6

The instruction read:
Evidence has been presented that government agents exceeded the
bounds of permissible law enforcement conduct.
Permissible law enforcement conduct is exceeded if government agents
supplied controlled substances to the defendant and then obtained the same
controlled substances from the defendant.
“Government agents” include law enforcement officers or persons acting
under their direction, influence or control.
The burden is on the state to prove to your satisfaction beyond a
reasonable doubt that government agents did not exceed the bounds of permissible
law enforcement conduct.
If you have a reasonable doubt as to whether the government agents
exceeded the bounds of permissible law enforcement conduct, you must find the
defendant not guilty.

[Doc. 27] at 199.

9

circumstances were as described by Petitioner, the failure of the state-court judge to “quash” his
prosecution was not fundamentally unfair.
Lastly, Petitioner cites several federal-court decisions on the federal defense of entrapment.
[Doc. 21] at 4–5, 6–7. None of these cases helps Petitioner. In the federal system, the defense of
entrapment requires a showing not only that (1) the government induced the defendant to commit
the crime but also that (2) the defendant was not otherwise predisposed to committing it. United
States v. Nguyen, 413 F.3d 1170, 1178 (2009); see Hampton, 425 U.S. at 488 (“[T]he entrapment
defense focuses on the intent or predisposition of the defendant to commit the crime, rather than
upon the conduct of the Government’s agents.” (brackets and citation omitted)). Of course, the
federal defense of entrapment does not apply here because Petitioner was not tried or convicted in
federal court. But even if the federal defense applied, Petitioner would not be entitled to relief for
two reasons. One, Petitioner fails to argue, much less show, that he was not predisposed to
trafficking cocaine. In fact, the record shows the opposite. Petitioner had a substantial criminal
history including numerous arrests and convictions for trafficking cocaine prior to his arrest in this
case. [Doc. 27] at 9–11, 56–57; see [Doc. 31] at 7–8. This history of trafficking cocaine shows
that Petitioner was already predisposed to selling cocaine to the undercover agent. Therefore, even
if Petitioner had been prosecuted with a federal crime, the defense of entrapment would not have
been available to him. Two, the federal defense of entrapment is not cognizable as a habeas claim.
See United States v. Russell, 411 U.S. 423, 433 (1973) (holding that the defense of entrapment “is
not of a constitutional dimension”). Thus, even if Petitioner could show entitlement to the federal

10

defense of entrapment, which he cannot, he would not be entitled to habeas relief because
entrapment is not of a constitutional dimension. His Petition should be denied.7
B. Outrageous Government Conduct
The defense of outrageous government conduct is distinct from the defense of entrapment
in that the entrapment defense looks to the state of mind of the defendant to determine whether he
was predisposed to commit the crime for which he was prosecuted, whereas the outrageous
conduct defense looks at the government’s behavior. United States v. Mosley, 965 F.2d 906, 909
(10th Cir. 1992).

When the government’s conduct during an investigation is sufficiently

outrageous, the courts will not allow the government to prosecute offenses developed through that
conduct. Id. at 908. A defendant may challenge such conduct by means of the outrageous conduct
defense, which is predicated on the Due Process Clause. Id. at 908–09. It “is an extraordinary
defense reserved for only the most egregious circumstances.” Id. at 910.
The defense of outrageous government conduct has two requirements, government creation
of the crime and substantial coercion. United States v. Sneed, 34 F.3d 1570, 1577 (10th Cir. 1994)
(citing Mosley, 965 F.2d at 911).8 Here Petitioner’s allegations, even if true, fail to show either
requirement. The Court addresses them in order of analytical convenience.

Relatedly, Petitioner argues that his ability to assert a viable entrapment defense was “thwarted by the prosecution’s
destruction of . . . the only existing audio recording of an interview with a law enforcement officer involved in the
sham drug transaction.” [Doc. 21] at 8. To the extent that Petitioner intends to assert this as an independent habeas
claim, see id. at 3, it is conclusory and underdeveloped. It is unclear what claim Petitioner intends to raise, if any. He
cites no caselaw or other legal authority. This claim, to the extent there is any, is waived. See Garrett, 425 F.3d
at 840–41 (a brief “must contain . . . more than a generalized assertion of error[ and must contain] citations to
supporting authority. When a . . . litigant fails to [cite to authority], we cannot fill the void by crafting arguments and
performing the necessary legal research.”).
8
Petitioner refers repeatedly in his opening brief to his position that law enforcement was “guided by an illegitimate
purpose” or an “improper purpose.” [Doc. 21] at 5, 2. For this proposition, Petitioner cites to state-court opinions
from New Mexico, West Virginia, Missouri, and New York. Id. at 5, 8. He cites no federal authority. See [Doc. 21].
Petitioner fails to show that this factor is relevant to my analysis. I have searched in vain for any Supreme Court or
7

11

First, Petitioner fails to allege—much less show—that he was substantially coerced into
selling crack cocaine to the undercover agent. In fact, nothing in Petitioner’s allegations could be
interpreted as showing coercion at all. Because substantial coercion is required to establish
outrageous government conduct, and because Petitioner alleges no coercion at all, his claim fails.
His Petition should be denied.
Second, Petitioner’s factual allegations (even if true) fail to show government creation of
the crime. He alleges that a “confidential informant, working in concert with law enforcement
officers, at their direction and under their control, supplied [him] with a quantity of crack cocaine,
for the sole purpose of selling it to a law enforcement officer working undercover.”9 Id. at 3–4.
Based on this scant version of events, Petitioner concludes that the cocaine sale for which he was
convicted was “wholly created” by law enforcement. Id. at 3. Petitioner offers no legal support
for his conclusion that these facts amount to government creation of the crime.
Petitioner cites numerous cases that recognize the outrageous conduct defense in the
abstract. [Doc. 21] at 4–5, 6–8. For example, Petitioner cites to Russell for the proposition that
“police tactics may offend our notions of fundamental fairness and [be] so outrageous that ‘due
process principles would absolutely bar the government from invoking judicial processes to obtain
a conviction.’” Id. at 3 (quoting Russell, 411 U.S. at 431–32). He cites another Supreme Court
case for the proposition that “police conduct violates due process when it shocks the conscience.”
Id. (quoting Rochin v. California, 342 U.S. 165, 172 (1952)). He cites Mosley to argue that
“excessive involvement by the police in creating the crime constitutes unconscionable police

Tenth Circuit case referring to an illegitimate or improper purpose or motive. Accordingly, I do no analyze whether
law enforcement in Petitioner’s situation had an illegitimate purpose.
9
This is as much specificity as Petitioner provides. This is not a summary; this is the entirety of his version of the
facts. See [Docs. 21, 31].

12

methods.” Id. at 4–5 (citing Mosley, 965 F.2d at 910–12)). These cases and the others cited by
Petitioner show that outrageous government conduct can be a defense. Yet, Petitioner provides no
support for his conclusion that the facts in his case qualify for the defense. Petitioner fails to
discuss or describe the facts of any precedent case, and critically, he makes no effort whatsoever
to compare the facts of any precedent case with his own. He argues exclusively in general terms
about the abstract existence of the defense but fails entirely to discuss how the facts of his crime
should trigger the defense.
The precedent cases are not in his favor. I have found no case in which the Supreme Court
or the Tenth Circuit applied the Due Process Clause to invalidate a conviction for outrageous
government conduct. See Stamps v. Miller, 763 F. App’x 686, 695 (10th Cir. 2019). Not one.
Nor does Petitioner give any example of such a case—from any federal court anywhere.10 See
[Docs. 21, 31].
The most relevant guidance I have found is that “the government can suggest the illegal
activity, can provide supplies and expertise for the activity, and can act as both supplier and buyer
in sales of illegal goods in order to induce the defendant to repeat, continue, expand, or extend the
criminal activity.” Sneed, 34 F. 3d at 1577 (citing Mosley, 965 F.2d at 911–12). Considering
Petitioner’s undisputed history of trafficking cocaine, this language suggests to me that the
government’s conduct, as alleged by Petitioner, was not outrageous.
The Tenth Circuit has also described a relevant hypothetical circumstance on the other end
of the spectrum. The court speculated that “if a government agent entered a drug rehabilitation
10

I am aware of only two circuit court decisions setting aside convictions for outrageous government conduct:
United States v. Twigg, 588 F.2d 373, 379 (9th Cir. 1978) and Greene v. United States, 454 F.2d 783, 786–87 (9th
Cir. 1971). These cases are distinguishable from the case at bar because they are both direct appeals of federal
convictions, whereas the instant case attempts to invoke habeas relief to undo a state-court conviction.

13

treatment center and sold heroin to a recovering addict, and the addict was subsequently prosecuted
for possession of a controlled substance, the outrageous government conduct defense might
properly be invoked.” United States v. Harris, 997 F.2d 812, 818 (10th Cir. 1993). Petitioner’s
situation, as he alleges it, is nowhere close to the hypothetical situation in Harris.
Petitioner’s version of the facts fails to meet either requirement for the
outrageous-government-conduct defense. He does not allege that he was coerced into selling crack
cocaine. Nor does he provide any legal authority to support his view that the facts here (even as
he alleges them) constitute “government creation of the crime.” More to the point, though, I have
found no case in our circuit in which a state-court conviction was overturned based on outrageous
government conduct, and Petitioner’s conviction—even on the facts as he alleges them—does not
warrant his being the first. His Petition should be denied.
II. Right to Counsel
Petitioner argues that he was denied the “right to counsel” when the trial court refused to
allow his trial attorney to withdraw. [Doc. 21] at 13. Petitioner argues that the trial-court judge
should have allowed his trial counsel to withdraw for two reasons. One, their relationship had
irretrievably eroded prior to trial. Two, if the attorney had been allowed to withdraw, the attorney
would have been free to testify as a witness about an interview with a law-enforcement officer
regarding the “sham drug transaction.” Id. at 8–9. Petitioner complains that the trial-court judge
would not appoint a new attorney or permit him to represent himself. Id. at 9. Petitioner complains
that the trial-court judge did not hold any hearing on the motion to withdraw, at which he alleges
that he could have “presented evidence to provide factual support for the motion” or where
Petitioner’s “ability to represent himself could have been tested.” Id. Finally, Petitioner argues
14

that “his more limited right to counsel of choice was violated.” Id. at 13. To support his position,
the sole legal authority Petitioner cites is Faretta v. California, 422 U.S. 806 (1975). I am not
persuaded.
Petitioner fails to show that his right to counsel was violated. He had an attorney, and he
fails to explain how his “right to counsel” was violated considering that he had an attorney. See
[Docs. 21, 31]. The argument is without merit.
Petitioner fails to show that his right to self-representation was violated. He references
Faretta and says that he was not permitted to represent himself, [Doc. 21] at 9, but that is as far as
he goes, see [Docs. 21, 31]. He does not discuss any of the circumstances of his request to represent
himself or of the denial of his request. He does not discuss Faretta at all; he does not even provide
a pin cite. Even if I accept Petitioner’s factual allegations as true, they do not show any violation
of Petitioner’s rights under Faretta. For example, “in order to represent himself, the accused must
‘knowingly and intelligently’ forgo those relinquished benefits [of representation by an attorney].”
Faretta, 422 U.S. at 835. Petitioner does not allege that his request to represent himself was
knowing and intelligent, nor could I draw such an inference from the facts he does allege. He does
not explain why his request was denied, or how such denial violated Faretta. The argument is
conclusory and without merit.
Petitioner fails to show that his trial counsel was constitutionally ineffective. As an initial
matter, I find any claim for ineffective assistance of counsel is waived because it was not raised
until the reply brief. Compare [Doc. 21] at 2, 9–13 (petition’s section on “right to counsel,” with
no mention of ineffective assistance), with [Doc. 31] at 9–10 (reply’s referencing “ineffective
assistance” for the first time).

15

Alternatively, Petitioner’s claim for ineffective assistance of counsel should be denied
because Petitioner does not allege that his attorney was ineffective, nor does he allege that he
suffered any prejudice as a result of his attorney’s performance. See Strickland v. Washington,
466 U.S. 668, 687 (1984) (holding that in order to establish a claim of ineffective assistance of
counsel, a petitioner must demonstrate: (1) that his counsel’s performance was deficient, and
(2) that the deficient performance prejudiced the defense). Petitioner’s allegations (even if true)
do not show any error by his attorney and do not show any prejudice resulting from his attorney’s
performance. Rather, Petitioner’s complaint is that trial judge should have allowed his attorney to
withdraw so that the attorney could testify in support of Petitioner’s entrapment defense. [Doc. 21]
at 9–10; [Doc. 31] at 9–10. Petitioner’s grievance is “the state trial court’s denial of his meritorious
motion to allow trial counsel to withdraw so that Petitioner . . . could call trial counsel as a witness
to key facts regarding his outrageous government conduct/due process defense.” [Doc. 31] at 9–
10. This is not a challenge to his attorney’s performance. And to the extent Petitioner argues that
his attorney was “conflicted” due the deterioration of their relationship, he still does not allege that
his attorney’s performance was lacking or that he was prejudiced as a result of his attorney’s
performance. [Doc. 21] at 11. He devotes an entire page of argument to the abstract principle that
“when the attorney-client relationship breaks down, one of the pillars of our system of criminal
justice crumbles.” Id. But he does not allege any error on his attorney’s part or that he suffered
any prejudice as a result of his attorney’s performance. Regardless of how it framed, Petitioner’s
claim regarding his “right to counsel” is without merit. The Petition should be denied.

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Conclusion
Petitioner fails to show that the state courts’ decisions on his claims were contrary to, or
involved an unreasonable application of, clearly established Federal law or were based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. See 28 U.S.C. § 2254. Further, I find that under any standard of review, Petitioner’s
claims are without merit. Therefore, I recommend that the Petition be denied and the action be
dismissed with prejudice. Next, I recommend denying Petitioner’s request that this Court “notify”
the state district court that he or his attorney should have access to any in camera interview,
[Doc. 31] at 1–2. Finally, I recommend denying Petitioner’s request for an evidentiary hearing
because (1) the claims were adjudicated on their merits by the state courts, see Pinholster, 563
U.S. at 182–83, and (2) even if they were not, no evidentiary hearing is needed because even if
everything Petitioner alleges were borne out by evidence, his claims would still fail.
IT IS THEREFORE RESPECTFULLY RECOMMENDED that Petitioner’s counseled
Fourth Amended Petition Pursuant to 28 U.S.C. § 2254 [Doc. 21] be DENIED and that this case
be DISMISSED with prejudice.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition, they may file
written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A
party must file any written objections with the Clerk of the District Court within the
14-day period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
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